Intergenerational Reflections on International Law: An Essay from Pierre Marie Dupuy

The international legal system established in 1945 can be seen, in its very design, as an incarnation of western rationalism.  Like that rationalism, it implicitly embodies a certain ideology of progress. In terms of its philosophical underpinnings, it would seem to be heir to the philosophy of the Enlightenment and the Aufkärung despite the fact that a number of its most influential advocates came from countries closer to Anglo-Saxon utilitarianism than to Kantian constitutionalism. This immediately poses a question therefore: could this set of norms claim in the long term to be truly universal in scope ?

Despite the ideological neutrality traditionally professed by the proponents of legal positivism, contemporary international law is founded on a particular western tradition. That tradition is itself based on the belief that subordinating the conduct of States to a common law of nations, recognised by all as valid and legitimate, will progressively bring about a gradual move away from if not ultimately a renunciation of any recourse to force.  Kant seems to be its most inspired prophet in that regard, in particular in his essay Perpetual Peace which seeks precisely to lay the foundations of a true legal cosmopolitanism, propounded in the name of all peoples. Kant remains moreover one of the crucial inspirations behind a shift away from metaphysics, in particular in terms of his philosophy of knowledge. Nevertheless, the project for perpetual peace he inspires, itself has a prophetic dimension found again in the Charter of the United Nations: that instrument, proclaimed in the name of “the peoples of the United Nations determined to save succeeding generations from the scourge of war … and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person …,” presents itself as a Promise.  It is an ideal purpose assigned to the community of peoples, implicitly founded on the sediments laid down in the collective conscience by a particular tradition, one which is primarily Christian but also discernible in other monotheistic systems.

At the same time, the text adopted in San Francisco in 1945 took the risk of claiming to be valid here and now, that is to say, from entry into force of the law which the Charter of the United Nations represents, ideally affirmed as a universal constitution in the Kantian sense updated in that regard by Habermas. There is therefore in any event a tension and a temporal contradiction between the law and the promise or, to put it another way, between the time needed to bring the project to fruition and the immediacy it claims.

The rationale behind this wish not to stop but to stabilise history by subjecting it permanently to the reign of reason has much to do with the horror, albeit in the beginning partly underestimated, of the Holocaust. Never again! We cannot go backwards without the risk that the unthinkable which nevertheless came true will happen again. This Promise is therefore also founded on a turning back, turning back Barbarism, which the Second World War had just shown could reach previously unparalleled dimensions, even in one of the countries which had contributed most to western humanist philosophy.

A “directional predication”, to borrow an expression from Alain Badiou, the Charter not only announced a new era but affirmed a rupture, a new departure in the history of peoples and their States at the same time as it enshrined a universal dimension of the human person (prefiguring the emergence of humanity as a subject of international law, which appeared gradually from the 1970s). It is in that aspect that we must look for its constructive value which would lead Habermas to conclude that it is constitutional, a term admissible in particular admissible when used metaphorically.

There were many who from the outset have thought that the project enshrined in the Charter was merely an unattainable ideal. Nevertheless, in the first decades, the myth of progress applied to the law if not always to international relations could more or less give the impression that it was working. Admittedly, the Cold War brought back tensions, but at the same time it kept out of direct conflicts, at least among the permanent members of the Security Council. The Security Council, it must be said, remained paralysed for most of its life, but it was in certain, especially normative, respects, beneficially replaced by the dramatic rise of the General Assembly taken as a World Forum, at least until the mid-1980s. The “outlawry of war” movement  had crumbled, but official recognition by all parties of the fundamental legitimacy of the principle of the renunciation of force in international relations, enshrined in Article 2.4 of the Charter, nevertheless remained in place. The right of the “international community as a whole” took over from claims for the “right to development”, the new incarnation of the right of peoples. There was a growing impression, then, at least after the Cuban missile crisis (1963), that albeit not ruling out all danger of war, the Charter, supplemented by the United Nations Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States (1970), gave all parties a renewed basis for “peaceful coexistence” and even more “cardinal” and “intransgressible” principles, as the International Court of Justice would call them in 1986 and ten years later.

The ideological inspiration behind contemporary international law from the time of its founding text adopted in San Francisco in 1945 has been given its full force by the fact that for a while now it has been perceived in all its fragility. With Daesh and the other rehashings of radical Islam we are back in the age, which we believed had been consigned to history, of militant obscurantism. Be off with you! Using theology to signal both its anchorage in the past and its diminishing horizon, it resolutely turns its back on the Enlightenment.  It has brought back not only metaphysics but theocracy and sets up the “Caliphate” as its model with a cry of “long live Death”, like the Francoist general  Millan-Astray back in the Spanish Civil War. Explicitly set on repudiating any democratic ideal, radical Islamism systematically rejects any reference to “human rights”, asserting in particular that women can legitimately be reduced to a radically subordinate status. That is not the only instance of regression, however, and it would be very wrong to believe that the attacks against the edifice of the Charter come only from a perverted element of the Muslim East.

Another threat is coming now from some of its founding fathers themselves. Permanent members of the Security Council, taking their inspiration from the unfortunate precedent set by the United States at the time of its intervention in Iraq in 2003 if not even from the military intervention of some NATO countries in Kosovo, back in 1999 may be reputed to take a somewhat flexible interpretation of some of the most fundamental principles of positive international law, as, among others, the military annexation of Crimea by Russia or the legally unfounded attempt by China to take a physical control of the largest part of the South China Sea provide some of the most striking examples. This time, however, those States are no longer really looking to either the vocabulary or the norms of current international law to justify their actions.

The United States, at least under the Trump administration, invoke in the most brutal way the return of nationalism versus multilateralism. Prominent institutions as the WTO, UNESCO and the UN itself are pointed to as mere obstacles to the sanctified triumph of the primacy given to national interest. We currently contemplate  an effort of  trivial populist leaders around the word including within the European Union for dismantling or, at least, radically criticising the very implications of a multilateralism which was and, in principle, still is the most convincing constituent of the international legal system established after the second world war. Hannah Arendt believed she could say that man had freed himself from both nature and history.  Is History nevertheless resurfacing to justify a rupture with the universality of modern international law? A universality partially recast, however, by the advent of the universality of the human person as a reference, which had emerged to compete with the reference of respect for State sovereignty…

A rather muddled way of analysing the current situation might be to see it as a questioning, on a large scale, of the sway the post-war victorious powers have held over international law. However, that way of seeing things, whilst it may at a push apply to the adherents of Islamic fundamentalism as replacing the myth of the Marxist revolution, is completely inapplicable to the behaviour of the United States and the one of two other permanent members of the Security Council,  respectively in 2003, 2014 or at  the present time.

The loss of any common reference undermines the explicit universality of the message put out by the Charter, as a historical project at risk of being reduced to a precarious collective contract. By the same token, the “constitutionalist” effort of 1945 dear to Habermas is revealed in all its precariousness. It saw itself as the product of a collective desire to rationalise international relations.  Yet was it, as the short-lived product of an exceptional moment, ultimately based on an illusion – the illusion that peoples could stop history by bringing it once and for all under the reign of reason as Kant was already inviting them to do?  History, however, never stops, but it often falters. The desire to institutionalise the subjective reign of reason would appear to have proved, if not futile, at least in part naive.

One of the collateral victims of this shift is likely to be the reference to “humanity” as affirmed in the early 1970s as a holder of rights and the organising spirit behind a significant amount of the international law of the last seventy years.  It is surely no accident that the deluded warriors of the so-called Islamic State seek to signify their difference precisely by committing “crimes against humanity”.  They signal their power by mocking that portion of humanity which each of their victims carries inside and stake out their territory with severed heads.

Back to the notion of universality; there are indeed at least two competing versions of it. The first, Kantian, notion of universality is that in the Charter, as already pointed out above, based on the idea that there are truly universal values of which the rights of the person and the pursuit of perpetual peace other than in the grave are the most tangible sign. This is the universality of the declarations of human rights, from 1776 to 1948; it emerged to complete the idea that the state of nature must be able, despite the nature of the State, to yield before the communal law of nations.

Alongside this, although much older, since it goes back to Descartes, we also have the universality asserted by scientific and technical discourse, which believes itself by definition to apply to everyone, in any latitude and in any age. The world of technology, including digital technology even if this last one may also be seen as a means for promoting the noosphere, could  lead  both to the abolition of Kant’s categorical imperatives and to an affirmation of the Nietzschean will to power which ultimately has no other purpose than its own expansion.  The globalisation progressively coming to the fore since the end of the 20th century seems therefore to be revealing that the cosmopolitan purpose proposed by the Charter is incapable of arresting the loss of meaning engendered by the technological age, articulating the drive for growth as an end in itself, increased productivity as a perpetual objective, a perpetual obsession with short-term profitability and competition as the ultimate possible horizon. At that breakneck pace, mankind, seeing itself quite clearly as the impecunious “master and possessor of nature” is jeopardising a planet which has become unbreathable and headed for the sterility of silent springs. The regression we are currently witnessing appears therefore to be, at a deeper level, an increasingly clear manifestation of that “universal loss of meaning” of which Heidegger and the Frankfurt School had both announced its emergence and deplored its expansion. 

At a stroke, perceived in a pessimistic way the geostrategic or cultural causes which had been invoked previously, far from losing their force as explanations, could be seen as the indirect effects of a shift in history of a quite different magnitude, beginning in western Europe several centuries ago, with the Discourse on Method…. The brutal regression embodied in Islamic barbarism would in that respect  in fact be related to technicist savagery, just as destructive of the human environment, in the broadest sense, as of the values which underpin it. The technicist and productivist globalisation triumphing in the capitalist world, by corroding the very values which allowed it to exist, is thus contributing indirectly to the return of a summary divinity suitable for those marginalised by capitalism. Is the eternal recurrence not always, ultimately, the eternal recurrence of barbarism?

 Towards a programme to combat regression?

To devise a programme of action attempting to rein in the degradation of an international legal system established more than seventy years ago is beyond the scope of this brief note. We may, however, recall here and again the importance of an approach inspired by Antonio Cassese consisting of reconciling realism and utopia. We must at the same time be aware of the constraints imposed by the persistent inertia of sovereignties whilst inviting all peoples to harmonise their visions of the future in pursuit of common aims which are constantly being reformulated. Utopia is only reprehensible when it is a substitute for action, not when it inspires it.

The pursuit of peace and the renunciation of recourse to force today still constitute a crucial direction of travel. In order to give the Charter back its prophetic dimension, however, we now have to add to it the, inherently universal, cause of safeguarding and restoring the health of the planet. As the Stockholm Declaration on the human environment had already said, “we only have one Earth”, and it has today been degraded to such a degree that it can only be restored to health with a gigantic collective effort of universal cooperation the framework and programme for which were successfully laid out by the Paris Agreement on protection of the global climate, adopted in December 2015.  The formalism which is all too often unthinkingly levelled against the law should therefore be seen on the contrary as a means of clarifying the targets incumbent upon all the components of an international community comprising, besides the States, the various participants in international civil society: from now on, upholding the law is quite clearly too important to leave to the sole diplomats. It is, also, through invocation of a well-tempered Utopia that mercantile globalisation will encounter competition from a cosmopolitan solidarity intended to reinvest it with meaning whilst upholding universal respect for the Other, another way for pointing to the crucial importance of the defence of fundamental human rights. Hope is a risk which is always worth to be taken.